ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2712
(By Mr. Speaker, Mr. Kiss, and Delegate Ashley
[By Request of the Executive]
[Passed April 11, 1997; in effect from passage.]
AN ACT to amend and reenact section nine-a, article one, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said
chapter by adding thereto a new article, designated article
thirteen-c, all relating to public water systems; definition
of public water system; criminal penalties; civil and
administrative penalties; violation of drinking water rules
or regulations; creation of safe drinking water penalty
fund; designation of division of health as instrumentality
to enter into agreements for and accept grants made by the
United States Environmental protection agency; creation of
drinking water treatment revolving fund; legislative rules;
administration and management of fund by division of health
and water development authority; use of grant moneys
generally; use of grant moneys for providing technical
assistance services for small public water systems; use of
grant moneys for disadvantaged communities; deposits of
grant moneys; set-aside accounts; audit of grant moneys; remedies to enforce payment of loans from fund; and
construction of article.
Be it enacted by the Legislature of West Virginia:
That section nine-a, article one, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said chapter be
further amended by adding thereto a new article, designated
article thirteen-c, all to read as follows:
ARTICLE 1. DIVISION OF HEALTH.
§16-1-9a. Public water system defined; regulation of maximum
contaminant levels in water systems; authorizing inspections;
criminal, civil and administrative penalties; safe drinking water
penalty fund.
(a) A public water system is any water supply or system
which regularly supplies or offers to supply water for human
consumption through pipes or other constructed conveyances, if
serving at least an average of twenty-five individuals per day
for at least sixty days per year, or which has at least fifteen
service connections, and shall include: (1) Any collection,
treatment, storage, and distribution facilities under the control
of the owner or operator of such system and used primarily in
connection with such system; and (2) any collection or
pretreatment storage facilities not under such control which are
used primarily in connection with such system. A public water
system does not include a system which meets all of the following
conditions: (1) Which consists only of distribution and storage facilities (and does not have any collection and treatment
facilities); (2) which obtains all of its water from, but is not
owned or operated by, a public water system which otherwise meets
the definition; (3) which does not sell water to any person; and
(4) which is not a carrier conveying passengers in interstate
commerce.
(b)(1) The division of health shall prescribe by legislative
rule the maximum contaminant levels to which all public water
systems shall conform in order to prevent adverse effects on the
health of individuals, and, if it deems appropriate, treatment
techniques that reduce the contaminant or contaminants to a level
which will not adversely affect the health of the consumer. Such
rule shall contain provisions to protect and prevent
contamination of wellheads and well fields used by public water
supplies so that contaminants do not reach a level which would
adversely affect the health of the consumer.
(2) It shall further prescribe by legislative rule minimum
requirements for: Sampling and testing; system operation; public
notification by a public water system on being granted a variance
or exemption or upon failure to comply with specific requirements
of this section and regulations promulgated under this section;
record keeping; laboratory certification; as well as procedures
and conditions for granting variances and exemptions to public
water systems from state public water systems regulations.
(3) In addition, the division of health shall establish by
legislative rule, as set out in chapter twenty-nine-a of this code, requirements covering the production and distribution of
bottled drinking water and may by legislative rule, as set out in
chapter twenty-nine-a of this code, establish requirements
governing the taste, odor, appearance, and other consumer
acceptability parameters of drinking water.
(c) Authorized representatives of the division of health
shall have right of entry to any part of a public water system,
whether or not the system is in violation of a legal requirement,
for the purpose of inspection, sampling or testing, and shall be
furnished records or information reasonably required for a
complete inspection.
(d)(1) Any individual, partnership, association, syndicate,
company, firm, trust, corporation, government corporation,
institution, department, division, bureau, agency, federal
agency, or any entity recognized by law who violates any
provision of this section, or any of the rules or orders issued
pursuant thereto, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than twenty-five dollars nor
more than two hundred dollars, and each day's violation shall
constitute a separate offense. In addition thereto, the division
of health may seek injunctive relief in the circuit court of the
county in which all or part of the public water system is
situated for threatened or continuing violations.
(2) For a willful violation of a provision of this section,
or of any of the regulations or orders issued thereunder for
which a penalty is not otherwise provided under subdivision (3) of this subsection
, an individual, partnership, association,
syndicate, company, firm, trust, corporation, government
corporation, institution, department, division, bureau, agency,
federal agency, or entity recognized by law, upon a finding
thereof by the circuit court of the county in which the violation
occurs, shall be subject to a civil penalty of not more than five
thousand dollars, and each day's violation shall be grounds for
a separate penalty.
(3) The division of health shall have the authority to
assess administrative penalties and initiate such proceedings as
may be necessary for the enforcement of drinking water
regulations. The administrative penalty for a violation of any
drinking water rule or regulation adopted by the division shall
be a minimum of one thousand dollars per day per violation and
each day's violation shall be grounds for a separate penalty. In
any action brought to enforce drinking water rules or regulation,
the administrative penalty may not exceed an aggregate amount of
five thousand dollars for systems serving a population of less
than ten thousand persons and may not exceed twenty-five thousand
dollars for systems serving a population of ten thousand persons
or more. Payments shall be payable to the division of health.
All moneys collected under this section shall be deposited into
a restricted account known as the safe drinking water penalty
fund, which is hereby created in the office of the state
treasurer. All money deposited into the fund shall be used by
the division of health to provide technical assistance to public water systems.
ARTICLE 13C. DRINKING WATER TREATMENT REVOLVING FUND ACT.
§16-13C-1. Definitions.
Unless the context in which used clearly requires a
different meaning, as used in this article:
(1) "Authority" means the water development authority
provided for in section four, article one, chapter twenty-two-c
of this code.
(2) "Capacity development" means the technical, managerial
and financial capability of a public water system.
(3) "Cost" means the cost of all labor, materials,
machinery, equipment, lands, property, rights and easements,
plans and specifications and all other expenses necessary or
incident to the acquisition, construction, improvement,
expansion, extension, repair or rehabilitation of all or part of
a project.
(4) "Disadvantaged community" means the service area of a
public water system that meets affordability criteria established
after public review and comment by the state.
(5) "Federal safe drinking water act" means the federal
statute commonly known as the "Safe Drinking Water Act", 42
U.S.C. 300f et seq., as enacted, amended, and as may be
subsequently amended.
(6) "Fund" means the
West Virginia drinking water treatment
revolving fund created in this article.
(7) "Instrumentality" means the division of health which
shall have the primary responsibility for administering the fund and this article pursuant to requirements of the federal safe
drinking water act.
(8) "Local Entity" means any municipality, public utility,
or person, including any individual, firm, partnership,
association, not-for-profit corporation or other corporation
organized and existing under the laws of the state which is
empowered to construct and operate an eligible project.
(9) "Public water system" means that term as defined in
section nine-a, article one, chapter sixteen of the code.
(10) "Project" means a project for improving a drinking
water system for the purpose of achieving or maintaining
compliance with applicable state and federal drinking water
regulations.
(11) "Set-aside accounts" means those accounts that may be
set up for activities required by the federal safe drinking water
act and the moneys for these accounts may be taken from the
federal capitalization grant for these nonproject activities
before the capitalization grant is deposited into the fund.
(12) "Small system" means a public water system serving
10,000 or fewer persons.
§16-13C-2. Designation of division of health as state
instrumentality; rules; small systems; disadvantaged communities.
(a) The division of health shall act as the instrumentality
that is hereby empowered to enter into capitalization agreements
with the United States Environmental Protection Agency, to accept
capitalization grant awards made under the federal safe drinking
water act, and to direct the administration and management of the
drinking water treatment revolving fund created in this article in accordance with the requirements of federal law.
(b) The division of health shall propose rules for
legislative approval in accordance with provisions of article
three, chapter twenty-nine-a of the code for the purpose of
effecting the administration of the provisions of this article.
The rules shall include, but are not limited to, establishing
requirements for: (1) Capacity development; (2) environmental
review; (3) disadvantaged community designation; (4) receipt and
disbursement of fund moneys; and (5) establishment of a drinking
water treatment revolving fund program to direct the financial
management of the fund to water systems and establish the
interest rates and repayment terms of the loans.
(c) Two percent of the annual federal capitalization grants
made to this state shall be utilized to provide technical
assistance services for small systems to assist those systems in
maintaining compliance with the federal safe drinking water act.
The division of health shall enter into contracts to provide
technical assistance services for small systems with such
nonprofit organizations that: (1) Have a membership that
represent at least twenty-five percent of the small systems of
this state; and (2) have at least five years experience in
providing on-site technical assistance to small systems.
(d) The division of health shall, in accordance with the
provisions of the federal safe drinking water act, establish a
program for loan subsidies to disadvantaged communities. Thirty
percent of the annual federal capitalization grants made to this
state shall be dedicated to the funding of projects for
disadvantaged communities.
§16-13C-3. Drinking water treatment revolving fund; duties of
division of health and water resources authority; set-aside accounts.
(a) There is hereby created in the office of the state
treasurer a special fund to be known as the "West Virginia
drinking water treatment revolving fund". The fund shall be
administered and managed in accordance with the provisions of the
federal safe drinking water act.
(b) The fund shall be administered and managed by the water
development authority under the direction of the division of
health. The fund shall be comprised of moneys appropriated to
the fund by the Legislature, moneys allocated to the state by the
federal government expressly for the purpose of establishing and
maintaining a drinking water treatment revolving fund, all
receipts from loans made from the fund, all income from the
investment of moneys held in the fund, and all other sums
designated for deposits to the fund from any source, public or
private. Moneys in the fund shall be used solely to make loans
or provide other allowable financial assistance to eligible
projects for public water systems, as described in the federal
safe drinking water act.
(c) In order to carry out the administration and management
of the fund, the authority is authorized to employ officers,
employees, agents, advisors and consultants, including attorneys,
financial advisors, engineers, other technical advisors and
public accountants, and notwithstanding any provisions of this
code to the contrary, to determine their duties and compensation
without the approval of any other agency or instrumentality.
(d) The authority shall propose rules for legislative
approval in accordance with the provisions of article three
chapter twenty-nine-a of this code to govern the pledge of loans
to secure bonds of the authority.
(e) All moneys belonging to the fund shall be kept in
appropriate depositories and secured in conformance with the
provisions of this code. Disbursements from the fund shall be
authorized for payment by the director of the authority or the
director's designee. Any depository or officer of the depository
to which moneys of the fund are paid shall act as trustee of the
moneys and shall hold and apply them solely for the purposes for
which the moneys are provided under this article. Moneys in the
fund shall not be commingled with other money of the authority.
Notwithstanding any provision of this code to the contrary,
amounts in the fund shall be deposited by the authority in one or
more banking institutions: Provided, That any moneys so
deposited shall be deposited in a banking institution located in
this state. The banking institution shall be selected by the
authority by competitive bid. If not needed for immediate use
or disbursement, moneys in the fund may be invested or reinvested
by the authority in obligations or securities which are
considered lawful investments for public funds under this code.
(f) Pursuant to the provisions of the federal safe drinking
water act, set-aside accounts may be set up in accounts separate
from the drinking water treatment revolving fund. These set- aside accounts shall include, but not be limited to,
administration costs, source water protection, operator training
and certification, technical assistance to systems, local assistance, and other state activities permitted by the federal
safe drinking water act. The division of health shall direct the
authority to establish and administer the set-aside accounts as
permitted by the federal safe drinking water act. An application
fee may be charged and deposited into the administrative account
to defray the cost of administering the program.
§16-13C-4. Management of funds.
The authority shall manage the funds received pursuant to
the provisions of this article for accounting purposes. The
authority shall cause an audit of its books and accounts to be
made at least once each fiscal year and the cost thereof may be
defrayed as administrative expense under provisions of this
article. The audit shall be conducted by a certified public
accountant and provide an auditor's opinion on the fund financial
statements, a report on the internal controls and a report
prepared in compliance with the provisions of the drinking water
treatment revolving fund.
§16-13C-5.
Remedies to enforce payment.
(a) In order to ensure the timely payment of all sums due
and owing to the fund under a revolving fund loan agreement made
between the state and a local entity, and notwithstanding any
provisions of this code to the contrary, the authority has and
may, at its option, exercise the following rights and remedies in
the event of any default by a local entity under a loan
agreement:
(1) The authority may directly impose, in its own name and
for its own benefit, service charges upon all users of a project
funded by a loan distributed to a local entity pursuant to this article, and may proceed directly to enforce and collect the
service charges, together with all necessary costs of the
enforcement and collection.
(2) The authority may exercise, in its own name or in the
name of and as the agent for a particular local entity, all of
the rights, powers and remedies of the local entity with respect
to the project or which may be conferred upon the local entity by
statute, rule, regulation or judicial decision, including all
rights and remedies with respect to users of the project funded
by the loan distributed to that local entity pursuant to this
article.
(3) The authority may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by a
local entity of all the terms and conditions of the loan
agreement between the state and that local entity including:
(A) The adjustment of service charges as required to repay
the loan or otherwise satisfy the terms of the loan agreement;
(B) The enforcement and collection of service charges; and
(C) The enforcement by the local entity of all rights and
remedies conferred by statute, rule, regulation or judicial
decision.
(b) The rights and remedies enumerated in this article are
in addition to rights and remedies conferred upon the authority
by law or pursuant to the loan agreement.
§16-13C-6. Construction of article.
The provisions of this article shall be liberally construed
to the end that its beneficial purposes may be effected. Insofar
as the provisions of this article are inconsistent with the provisions of any other general, special or local law, the
provisions of this article are controlling.
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